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Court decision prompts renewed calls for ‘no-fault divorce’

Posted on 9th May 2017 at 10:07 am

A recent decision by the Court of Appeal in England has sparked a degree of controversy after judges rejected a woman’s divorce application. This decision highlights the critical need for English family law reform and demonstrates a significant difference in how we approach divorce in Scotland.

Case Details

Tini and Hugh Owens had been married for 40 years when Mrs Owens raised divorce proceedings. Before a Court can consider granting decree of divorce it must be satisfied that the marriage has irretrievably broken down. One basis upon which irretrievable breakdown can be established is the unreasonable behaviour of a spouse such that it is no longer reasonable to expect the other spouse to continue to reside with him or her.

Mrs Owens raised divorce proceedings on the grounds of her husband’s unreasonable behaviour towards her. She detailed no less than 27 instances of what she considered to be his unreasonable behaviour such as putting his work before family life and criticising her in public. This action was defended by her husband and the Family Court found in his favour deciding that the marriage had not irretrievably broken down. The judge was unable to treat her husband’s behaviour as so unreasonable that she could not be expected to continue to live with him.

Mrs Owens appealed this decision, but the Court of Appeal upheld the finding of the Family Court. Mrs Owens will now have to wait until she and her husband have been separated for a continuous five year period before she is able to divorce.

The judges expressed sympathy for Mrs Owens’ position, but highlighted that they were bound by the current divorce law in England and that it was up to Parliament to introduce any required changes to this.

Calls for Review of Divorce Law

The ruling has led to renewed calls for a review of divorce law in England and Wales.

In Scotland, whilst the grounds for divorce are very similar, the Family Law (Scotland) Act 2006 radically changed our approach to divorce law. It is only possibly to obtain a divorce in Scotland once it has been established that a marriage has irretrievably broken down. This may be only be established by adultery or unreasonable behaviour (the “fault” grounds of divorce), or after a separation period of one year if both parties formally consent to the divorce, or after two years separation if one party does not consent (the “non-fault” grounds”). This Act reduced the time periods for the non-fault grounds for divorce from two years to one, and from five years to two respectively.

No such reform has been forthcoming in England where divorce is only possible on the grounds of adultery, behaviour or desertion, or after a separation period of two years if both parties are in agreement, or after five years separation if one party does not consent.

Family law organisation Resolution said that the Owens case was a clear example of why a review of English family law was long overdue:

“It is simply wrong that, in 2017, anyone who can’t afford to put their lives on hold for two years whilst waiting to divorce is required to apportion blame,” said Resolution’s Chair, Nigel Shepherd. “And asking judges to rule on who did what is unacceptable in a modern society. People need to be helped to focus on the future not pushed into recriminating on the past.”

Current Laws Create Conflict

Initial findings from a study currently underway at the University of Exeter add weight to the need for divorce law reform.

Researchers found that over half of divorces are now based on ‘unreasonable behaviour’, and being put in the position of having to make these allegations often creates, or intensifies, conflict between the divorcing couple. This in turn makes it much harder for couples to move on following the divorce and come to amicable arrangements with regards to issues like child care.

“The study really highlights the need for law reform, made more urgent after the Owens v Owens decision,” commented lead researcher Professor Trinder. “We need a law that helps families look forward rather than back. The current law encourages spouses to blame each other for the breakdown, but then once they’ve done that, it expects them to work together as parents to put their children first.”

Contact Us

Please contact a member of our Family Law Team for expert legal advice on divorce in Scotland. Fill in our enquiry form or telephone us on 0131 229 5046. We look forward to hearing from you.

This article was co-written by Rachel Cooper (rachel.cooper@macroberts.com)

Author

Jacqueline Stroud is Partner and Head of our Family Law Team, having specialised in the area of family law for over 25 years.

Jacqueline has a keen interest in Alternative Dispute Resolution (ADR) and recognises that, in most cases, her client’s interests are best served by negotiating an amicable settlement. However, if and when that proves impossible, she is also an experienced litigator. She is committed to a non-confrontational approach to resolving family law matters, and has experience of dealing with complex financial issues. Jacqueline has a keen interest in child law matters and always seeks to ensure that children’s best interests are at the centre of any family law dispute. She also has experience in preparing pre-nuptial agreements.

Jacqueline is accredited as a Specialist in Family Law by The Law Society of Scotland and also as a mediator and collaborative lawyer.

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